Federal Court of Australia

Australian Nursing and Midwifery Federation v Kitaya Holdings Pty Ltd [2022] FCA 1394

ORDERS

THE COURT ORDERS THAT:

Upon the Applicant providing the usual undertaking as to damages:

1.    Subject to further order of the Court, until the dispute identified in the Applicant’s application on behalf of Annon Downall filed in the Fair Work Commission (Commission) dated 26 October 2022 is determined by the Commission or otherwise resolved, the Respondent must not terminate Annon Downall’s employment by reason of an inability to perform night shifts.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J:

1    By an originating application dated 2 November 2022, the Applicant seeks, amongst other things, an interim injunction, pursuant to s 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) (Fair Work Act) and s 23 of the Federal Court of Australia Act 1976 (Cth). The injunction sought is to the effect that, until the dispute identified in the Applicant’s application on behalf of Annon Downall filed with the Fair Work Commission (Commission) and served on 26 October 2022 (Application) is resolved, the Respondent must not terminate Ms Downall’s employment.

2    In support of its application for an interim injunction, the Applicant relies on two affidavits of Megan Reeve, an Industrial Officer employed by the Applicant, dated 2 November 2022 and 17 November 2022. In opposition to the application, the Respondent relies on the affidavit of Jennine Harbrow, Director of Clinical Services at Jessie McPherson Private Hospital (JMPH) (the trading name of the Respondent), dated 17 November 2022.

background

3    The underlying dispute between the parties relates to the construction of certain provisions of the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2021 (Enterprise Agreement) against the following factual background.

4    Ms Downall is an employee of the Respondent and a member of the Applicant union, the Australian Nursing & Midwifery Federation (ANMF). Her employment is governed by the Enterprise Agreement.

5    Clause 6 of the Enterprise Agreement contains a dispute resolution process, which relevantly provides:

6.     DISPUTE RESOLUTION

6.1     Resolution of disputes and grievances

(a)     This clause applies to any dispute or grievance about a matter arising under this Agreement or the [National Employment Standards (NES)] — including section 65(5) and section 76(4) of the [Fair Work Act], except:

(i)     a dispute about termination of employment;

(ii)     a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement;

(iii)     a dispute about workload management, except as provided in clause 20 (Rosters); or

(iv)     as otherwise provided for in this Agreement.

(b)     A person bound by this Agreement may choose to be represented at any stage by a representative, including a Union representative or employer organisation.

6.2     Obligations

(a)     The parties to the dispute or grievance, and their representatives, must genuinely attempt to resolve the dispute or grievance through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(b)     Whilst a dispute or grievance is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to their health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.

(c)     No party to a dispute or person covered by the Agreement will be prejudiced as to the resolution or final settlement of the dispute or grievance by the continuance of work in accordance with this clause.

…

6.4     Discussion of grievance or dispute

(a)     The dispute or grievance must first be discussed by the aggrieved Employee(s) with the immediate supervisor of the Employee(s).

(b)     If the matter is not settled, the Employee(s) can require that the matter be discussed with another representative of the Employer appointed for the purposes of this procedure.

(c)     The discussions at sub-clause 6.4(a) will take place within fourteen days or such longer period as mutually agreed, save that agreement will not be unreasonably withheld.

(d)     If a dispute cannot be resolved at the workplace it may be referred by a party to the dispute or representative to the Tribunal [(defined in the Enterprise Agreement to mean the Commission)] for conciliation and, if the matter in dispute remains unresolved, arbitration.

…

6.7     Conciliation

(a)     Where a dispute or grievance is referred for conciliation, a member of the Tribunal shall do everything that appears to the member to be right and proper to assist the parties to the dispute to agree on terms for the settlement of the dispute or grievance.

(b)     This may include arranging:

(i)     conferences of the parties to the dispute and/or their representatives presided over by the member; and

(ii)     for the parties to the dispute and/or their representatives to confer among themselves at conferences at which the member is not present.

(c)     Conciliation before the Tribunal shall be regarded as completed when:

(i)     the parties to the dispute have reached agreement on the settlement of the grievance or dispute; or

(ii)     the member of the Tribunal conducting the conciliation has, either of their own motion or after an application by either party, satisfied themselves that there is no likelihood that within a reasonable period, further conciliation will result in a settlement; or

(iii)     the parties to the dispute have informed the Tribunal member that there is no likelihood of agreement on the settlement of the grievance or dispute and the member does not have substantial reason to refuse to regard the conciliation proceedings as completed.

6.8     Arbitration

(a)     If the dispute or grievance has not been settled when conciliation has been completed, either party may request that the Tribunal proceed to determine the dispute or grievance by arbitration.

(b)     Where a member of the Tribunal has exercised conciliation powers in relation to the dispute or grievance, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute or grievance if a party objects to the member doing so.

(c)     Subject to paragraph (d) below, the determination of the Tribunal is binding upon the persons bound by this Agreement.

(d)     An appeal lies to a Full Bench of the Tribunal, with the leave of the Full Bench, against a determination of a single member of the Tribunal made pursuant to this clause.

6    Ms Downall is employed part-time (0.83 of equivalent full-time) as an Associate Nurse Unit Manager (ANUM) by the Respondent. Ms Downall has been employed at JMPH since approximately 2 January 2004, including as an ANUM since approximately 9 February 2015.

7    Ms Downall has not been required by the Respondent to work night shifts for approximately three years due to Ms Downall’s medical condition (in the form of moderate obstructive sleep apnoea, with the co-morbidity of heart disease). This arrangement was reviewed every six months on the basis of reports from her general practitioner and the arrangement was continued on each occasion.

8    On or about 23 March 2022, Ms Downall provided the Respondent with a medical report from her general practitioner which stated that she was unable to work night shifts due to her condition and the risks associated with any such requirement. The general practitioner indicated in this report that it was unlikely that Ms Downall would ever be able to recommence working night shifts.

9    On or about 10 May 2022, there was a meeting between Ms Downall, her ANMF representative, representatives of Monash Health and the Respondent.

10    At the meeting, Ms Downall sought a continuation of her work arrangement (pursuant to clause 8 of the Enterprise Agreement) to exclude her from working night shift, or, in the alternative, a “reasonable adjustment” (pursuant to clause 50 of the Enterprise Agreement) to exclude her from working night shift.

11    Clause 8 of the Enterprise Agreement provides (emphasis in original):

8.     FLEXIBLE WORKING ARRANGEMENTS

(a)     The Act entitles specified Employees to request flexible working arrangement in specified circumstances.

(b)     The specified Employees are:

(i)     full[-]time or part[-time] Employees with at least 12 months[’] continuous service; and

(ii)     long term casual Employees who have been employed on a regular basis for at least 12 months and with a reasonable expectation of continuing employment by the Employer on a regular and systematic basis.

(c)     The specified circumstances are if the Employee:

(i)     is the parent, or has responsibility for the care, of a child who is of school age or younger;

(ii)     is a carer within the meaning of the [Carer Recognition Act 2010 (Cth)] which includes, with some exceptions, caring for someone who has a disability, a medical condition (including a terminal or chronic illness), a mental illness or is frail or aged;

(iii)     has a disability;

(iv)     is 55 or older;

(v)     is experiencing violence from a member of the Employee’s family; or

(vi)     provides care or support to a member of the Employee’s immediate family or a member of the Employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

(d)     A specified Employee may make a request to the Employer for a change in working arrangements relating to the specified circumstances at sub-clause 8(c).

(e)     A request for flexible working arrangements includes (but is not limited to) a request to work part-time upon return to work after taking leave for the birth or adoption of a child to assist the Employee to care for the child (which may, for example, include a reduction in existing part-time hours).

(f)     Changes in working arrangements may include (but are not limited to) changes to hours of work, patterns of work and location of work.

(g)     The request by the Employee must be in writing, set out details of the change sought and the reasons for the change.

(h)     The Employer must give the Employee a written response to the request within 21 days, stating whether the Employer grants or refuses the request. A request may only be refused on reasonable business grounds as described in the NES.

(i)     Where the Employer refuses the request, the written response must include details of the reasons for the refusal.

(j)    Where a request for flexible working arrangements is made, an Employee or Employer is entitled to meet with the other Party to discuss:

(i)     the request;

(ii)     an alternative to the request; or

(iii)     reasons for a refusal on reasonable business grounds.

(k)     An Employee or Employer may choose to be represented at a meeting under sub-clause 8(j) by a representative including a Union or employer organisation.

(l)     The dispute resolution procedure in the Agreement will apply to any dispute / grievance arising in relation to a request for flexible working arrangements.

(m)     Other entitlements relevant to family violence can be found at clause 46 (Family Violence Leave).

12    Clause 50 of the Enterprise Agreement provides (emphasis in original):

50     REASONABLE ADJUSTMENTS

(a)     Where Employees have a disability (whether permanent or temporary) the Employer is required to make reasonable adjustments to enable the Employee to continue to perform their duties in accordance with the Equal Opportunity Act 2010 (Vic)[ (EO Act).]

(b)     The Employer is not required to make reasonable adjustments if the Employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

(c)     Definitions

(i)     Disability has the same meaning as section 4 of the EO Act and includes:

(A)     total or partial loss of a bodily function;

(B)     presence in the body of organisms that may cause disease;

(C)     total or partial loss of a part of the body; or

(D)     malfunction of a part of the body including a mental or psychological disease or disorder or condition or disorder that results in a person learning more slowly than those without the condition or disorder.

(ii)     Reasonable adjustments has the same meaning as section 20 of the EO Act and requires consideration of all relevant facts and circumstances including:

(A)     the Employee’s circumstances, including the nature of the disability;

(B)     the nature of the Employee’s role;

(C)     the nature of the adjustment required to accommodate the Employee’s disability;

(D)     the financial circumstances of the Employer;

(E)     the size and nature of the workplace and the Employer’s business;

(F)     the effect on the workplace and the Employer’s business of making the adjustment including the financial impact, the number of persons who would benefit or be disadvantaged and the impact of efficiency and productivity;

(G)     the consequences for the Employer in making the adjustment; and

(H)     the consequences for the Employee in not making the adjustment.

13    At the meeting and thereafter, representatives of the Respondent expressed the view that Ms Downall’s performance of night shift is an “inherent requirement” of Ms Downall’s role. The Respondent has refused Ms Downall’s request for a flexible work arrangement pursuant to clause 8 of the Enterprise Agreement or to make “reasonable adjustments” pursuant to clause 50 on the basis that Ms Downall’s performance of night shift is an inherent or genuine and reasonable requirement of her role.

14    On 20 October 2022, the Respondent sent a letter to Ms Downall confirming that, subject to any further information received from Ms Downall, it would consider her ongoing employment and whether to terminate her employment for reasons of incapacity.

15    On 26 October 2022, the Applicant filed and served on the Respondent the Application in the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 6 of the Enterprise Agreement. In the Application, the Applicant maintained its position that Ms Downall was lawfully entitled not to work night shift as a flexible working arrangement pursuant to clause 8 of the Enterprise Agreement and as a reasonable adjustment pursuant to clause 50 of the Enterprise Agreement, as opposed to the Respondent’s position that it is an inherent requirement of Ms Downall’s job to perform night shift.

16    On 28 October 2022, the Respondent acknowledged receipt of the Application and stated:

JMPH does not consider that this matter gives rise to a dispute about a flexible work request. Furthermore, given the scope of clause 6.1(a)(i) of the [Enterprise Agreement], JMPH is of the view that this is not a matter that enlivens the status quo provisions under clause 6.2(b) of the [Enterprise Agreement].

17    The Respondent stated that:

(a)    the Respondent considered that it was an inherent requirement of Ms Downall’s position to be available to work on a rotating roster across day, evening and night shifts;

(b)    Ms Downall had provided medical evidence that she may never return to performing night shifts;

(c)    the Respondent was concerned that Ms Downall did not have capacity to perform the inherent requirements of her role;

(d)    Ms Downall was invited to provide the Respondent with information and reasons as to why her employment should not be terminated due to incapacity on or by 4 November 2022; and

(e)    if Ms Downall did not “attend the meeting [on 4 November 2022] or we do not receive a written response with information (including any further medical information) and/or reasons why your employment should not be terminated for reasons of incapacity [by 4 November 2022], a decision regarding your ongoing employment and whether to terminate your employment for reasons of incapacity will be made based on the available information at that time”.

18    On 2 November 2022, the Commission notified the Applicant, Ms Downall and the Respondent that the Commission had listed the Application for conference on 10 November 2022.

19    On 3 November 2022, this Court made an order in this matter, noting that the Respondent had given an undertaking to the Court that the Respondent would not take any action in relation to the employment of Ms Downall until after 4.00 pm on 18 November 2022. At the hearing of this matter, the Respondent extended this undertaking pending the issue of the Court’s decision on this interlocutory application, in the expectation that the Court would deal with the application in the coming days.

20    On 10 November 2022, the Applicant, Ms Downall and the Respondent participated in the conference at the Commission. No agreement on the settlement of the dispute was reached.

21    On 15 November 2022, the Applicant’s representatives sent an email to the Commission and to the Respondent, stating, among other things, that:

We are instructed that conciliation has been completed in accordance with clause 6.7 of the [Enterprise Agreement] and the matter will now proceed to arbitration. We propose to confer with the Respondent’s solicitors regarding the further conduct of the matter and [will] report back to the Commission by further email as soon as possible.

22    On 15 November 2022, the Applicant sent an email to the Respondent with proposed directions in relation to the conduct of the arbitration before the Commission.

PRINCIPLES

23    It was not disputed that the Applicant had standing to bring the application. Nor was it disputed that the Court had a discretion to grant an injunction in this case.

24    The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. To qualify for the relief that it seeks, the Applicant must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at 81–4 [65]–[72] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]).

25    Whether the Applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at 261 [67] (Dowsett, Foster and Yates JJ), citing Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 at [15] (Sundberg J).

26    The purpose of an interlocutory injunction is to keep matters in status quo until the rights of the parties can be determined at the final hearing and to prevent the practical destruction of that right before there has been the opportunity to have its existence finally established: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at 216–7 [9]–[12] (Gleeson CJ), citing Frederick J, Chapters on Equity in New South Wales (6th ed, University of Sydney Law School, 1947) p 146.

Submissions

27    The essence of the underlying dispute between the parties centres around whether clause 6 of the Enterprise Agreement is engaged in the present circumstances. The Applicant contends that the carve out in clause 6.1 — which provides, in substance, that clause 6 does not apply to a dispute about termination of employment — does not apply because the dispute concerns clauses 8 and 50 of the Enterprise Agreement. The Respondent contends that the dispute between the parties really concerns the termination of Ms Downall’s employment and therefore the carve out in clause 6.1 applies.

Submissions of the Applicant

28    The Applicant submitted it had established strong prospects of success.

29    The Applicant submitted that clause 6.2 applies to the dispute between the parties because the dispute arose by reason of the difference between the parties as to whether Ms Downall is entitled to a flexible working arrangement (pursuant to clause 8) or a reasonable adjustment to the requirements of her role (pursuant to clause 50). It was that dispute which was the subject of the complaint to the Commission.

30    The Applicant submitted that, as clause 6 applied, the Respondent’s proposed termination of Ms Downall’s employment would contravene clause 6.2 because:

(a)    The Respondent will not have complied with the dispute resolution procedure in clause 6.2(a) as the Respondent will not have genuinely “attempt[ed] to resolve the dispute that is the subject of the Application through the processes set out in clause 6”; and

(b)    Clause 6.2(b) will not have been complied with because Ms Downall will not be able to “work in accordance with normal practice” — indeed, she will not be able to work at all.

31    The Applicant contended that the carve out in clause 6.1(a)(i) is not engaged because:

(a)    Given Ms Dowell’s employment has not, to date, been terminated, there is no present dispute between the parties about termination of employment.

(b)    The dispute reflected in the Application before the Commission and the Respondent’s proposed basis to terminate Ms Downall due to her disability or purported inability to perform the inherent requirements of her role are part of the same dispute in the sense that both depend on whether the Respondent is correct in its view that, if Ms Downall is unable to perform night shift, Ms Downall is unable to perform the genuine and reasonable requirements of her role. The carve out in clause 6.1 is not engaged if Ms Downall’s employment is terminated by reason of her inability to perform night shift given that is the very subject matter of the dispute in relation to clauses 8 and 50. The Respondent cannot defeat the operation of clause 6 by terminating or proposing to terminate Ms Downall’s employment on the very basis that has given rise to the dispute about clauses 8 and 50 which triggered clause 6 in the first place.

32    The Applicant submitted that the inconvenience or injury which the Applicant and Ms Downall will suffer if the injunction were not granted far outweighed any inconvenience or injury which the Respondent may suffer if the injunctions were granted. The Applicant’s submissions in this respect were largely premised on the assumption that clause 6 was engaged. Based on that premise, the Applicant contended that any termination would be unlawful and therefore necessarily unjust. The Applicant submitted that, if the Respondent terminated Ms Downall’s employment, Ms Downall would:

(a)    suffer a contravention of her entitlements under the Fair Work Act;

(b)    lose employment which she has occupied for approximately the last twenty years and a role which she has occupied for the last nine years;

(c)    lose income from the Respondent;

(d)    suffer the stress of termination;

(e)    suffer the loss of the Enterprise Agreement which will no longer apply to her, and therefore which will mean that she will lose the benefit of clause 6 and its application to the dispute;

(f)    be required to launch additional litigation to seek re-instatement to her role; and

(g)    risk losing the ability to be re-instated to her role if there is a relevant change in the workplace that would make reinstatement impractical.

33    By contrast, on the Applicant’s submission, if the Respondent were restrained from terminating Ms Downall’s employment, then the Respondent will continue to benefit from Ms Downall’s labour in the same way that the Respondent has obtained for the last three years.

Submissions of the Respondent

34    The Respondent submitted that the Applicant’s prima facie case was weak.

35    The Respondent submitted that clause 6 of the Enterprise Agreement did not apply because the dispute between the parties was, in “real terms”, about the termination or threatened termination of employment.

36    The Respondent submitted that, even if clause 6 did apply, as a matter of construction, clause 6.2(b) was directed to employees only. The obligation it imposes is in respect of the performance of work. It is the employee and not the employer who performs work. This construction is reinforced by the balance of clause 6.2(b), which is directed at the position of the employee.

37    The Respondent contended that clause 6.2(b) does not operate to freeze and preserve every aspect of the status quo or every aspect of the existing arrangements between employer and employee. The clause did not prevent the employer making changes to employment, including by terminating the employment relationship.

38    The Respondent contended that the interlocutory injunction, if granted, would be in the form of final relief. Should the Respondent be restrained from terminating Ms Downall’s employment whilst the arbitration process played out, Ms Downall would have effectively obtained the benefit of clause 6 even though the issue of whether the clause properly applied remained unresolved before the Court.

39    The Respondent submitted that the grant of the injunction would result in prejudice and inconvenience to the Respondent and third parties. The Respondent is currently unable to cover all night shifts with ANUMs but must involve Clinical Nurse Specialists who require supervision. Other ANUMs are currently being required to work additional night shifts against their wishes. The length of any injunctive relief is indeterminate because it is not known when the Commission will resolve the dispute.

40    The Respondent contended that there is a more appropriate forum and form of remedy to afford Ms Downall relief. If the Respondent were to terminate Ms Downall’s employment, she could make an unfair dismissal claim before the Commission. If Ms Downall’s role ought to have been varied, she would be able to obtain relief in the form of reinstatement, back-pay and maintenance of continuity of service. In the meantime, damages would be an adequate remedy.

41    At the hearing, Counsel for the Respondent submitted that it was not a fait accompli that Ms Downall’s employment would be terminated if the injunction were not granted. The Respondent indicated that it may wish to obtain further medical evidence or make further inquiries of the nature of Ms Downall’s condition.

DISPOSITION

42    The Court is satisfied that Applicant has a prima facie case that clause 6.2 of the Enterprise Agreement applies and that its application would preclude the Respondent from terminating Ms Downall’s employment on the basis that she is unable to perform night duty.

43    Having regard to the genesis of the dispute, there is a prima facie case that the dispute was triggered pursuant to clauses 8 and 50 of the Enterprise Agreement and not by reason of the proposed termination of Ms Downall. Accordingly, the carve out in clause 6.1 is arguably not engaged.

44    The Court accepts that there are difficulties with the manner in which clause 6 is drafted, but it is at least arguable that the evident purpose of the clause is to ensure that the existing arrangements the subject of the dispute remain in place while the dispute concerning those arrangements is conciliated and, if necessary, arbitrated. Clause 6.2 requires that “work continue in accordance with usual practice” and arguably imposes an obligation on both employer and employee to ensure that work is able to continue in accordance with usual practice. A termination of the employee’s employment would arguably frustrate the ability of work to continue in accordance with usual practice by precluding the employee from working at all. Ryan J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods [2006] FCA 1039 construed the phrase “normal operations” as signifying that work will continue without any exceptional or unusual action on either side (at [52]), although it may be accepted that the language of the clause in that case stated that “the parties will continue with normal operations”.

45    There is considerable force in the Respondent’s contention that clause 6.2(b) does not preserve every aspect of the existing arrangement between employer and employee. It is strongly arguable that the clause does not operate to prevent changes to the arrangements which are unrelated to the dispute between the parties, but are changes which are a normal and usual incident of the employment arrangement. Clause 6.2(b) would not, on this reading, compel the employer to preserve every “minute detail” in the pre-dispute working environment: Ardmona Foods [2006] FCA 1039 at [53]. Indeed, the Court did not understand the Applicant to be contending otherwise. It appears consistent with such a construction that the requirement for work to continue in accordance with usual practice would not prevent the termination of employment for a reason unconnected with the dispute which engaged clause 6 and which is the subject of the Application.

46    However, it appears to the Court that while it is one thing to construe clause 6.2(b) as not compelling the preservation of every detail of the pre-dispute arrangement in order for work to “continue in accordance with usual practice”, it is quite another to construe clause 6.2(b) to permit the termination of the employment relationship on the very basis that is the subject of the dispute in circumstances where the Applicant is not unable to lawfully perform useful work at all.

47    Insofar as the balance of convenience is concerned, neither party’s case on this issue was compelling. During the hearing, the Court expressed its concerns about the Applicant’s failure to provide evidence of the financial consequences to Ms Downall that would arise from a loss of her income from the Respondent. That evidence did not extend beyond an estimate of Ms Downall’s monthly earnings from performing her role. No evidence was led of the economic consequences to her should she lose those monthly earnings or of her ability to secure work in other hospitals to ameliorate those lost earnings. Such evidence would ordinarily be expected. Its absence has caused the Court to come to its decision with reservation.

48    At the same time, the Respondent could not quantify its economic detriment should the injunction be granted. Although other employees are currently being required to work night shifts they do not want, if Ms Downall’s employment is terminated, her shifts will need to be covered in any event. The complaint of the Respondent is, in essence, about the costs that it will need to incur in order to secure additional night shift resources whilst Ms Downall is employed as an ANUM but is not performing night shift. While the Court accepts that such costs would continue to be incurred, it is unable to identify those costs with any precision. It is not apparent to the Court why these costs, to the extent they are incurred, could not be adequately addressed by the usual undertaking as to damages provided by the Applicant.

49    It appears to the Court that many of the detriments identified by the Applicant were, at best, abstract. At most, it may be said that, once her employment is terminated, it may be too late for Ms Downall to get the benefit of the processes provided for in clause 6 and she will have to contest her termination in other proceedings.

50    The Court reiterates its concerns about the lack of evidence provided by the Applicant of the financial consequences to Ms Downall of the loss of income from the Respondent. Notwithstanding this concern, the court infers that the impact upon Ms Downall of the termination of her employment is unlikely to be positive. Absent precise evidence of the financial consequences to Ms Downall (noting that many are likely to be able to be addressed through awards of compensation in the event that her claim succeeds), it might nonetheless be said that, if her employment is terminated, Ms Downall looks set to be deprived of the enjoyment and satisfaction that she might otherwise derive from her work: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at 549 [32] (Kirby J), 566–7 [80] (Callinan and Heydon JJ); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers’ Union (AMWU) & Anor v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 at [47]–[48] (Bromberg J), QNurses First Inc v Monash Health [2021] FCA 1372 at [39] (Snaden J).

51    There is force in the Respondent’s contention that the injunction, if granted, would be a form of final relief. However, the same might be said if the injunction were not granted. The arbitration process before the Commission would serve no useful purpose and, one would expect, would be subsumed or overtaken by a dispute over unfair dismissal.

52    What is clear to the Court is that it seems, one way or another, that the differences between the parties will likely need to be resolved by the Commission, whether by arbitration of the existing application before it or by determination of an application in relation to unfair dismissal. If the injunction were granted, that determination would take place within the framework of the arbitration process. If the injunction were not granted, the resolution of the differences between the parties would, in all likelihood, be within the framework of an unfair dismissal claim. The Respondent could point to no definitive disadvantage to it if the proceedings were to take the form of arbitration rather than unfair dismissal beyond the unquantified costs and qualitative inconvenience set out above. The Court notes that the current Application is presently in train.

53    It may be accepted that the grant of the injunction would result in performance of a contract of employment, but the Court notes the following:

(1)    As the Respondent submitted, no notice of termination has in fact been given. Termination of Ms Downall’s employment, whilst a real possibility, is not presently a fait accompli.

(2)    Any interim injunction will be for a limited duration. The injunctive relief would not extend beyond the point in time at which the Commission determines the ability of Ms Downall to perform the inherent requirements of her role. If the Commission is satisfied that the Respondent’s refusal to implement a flexible work arrangement or make reasonable adjustments to Ms Downall’s role was justified because the inability to perform night shift is an inability to perform an inherent requirement of her role, termination of employment on that basis would be justified. The Applicant appeared to concede as much.

54    It seems to me that the balance of convenience in this case is relatively finely poised. In the circumstances, the Court has concluded that the lower risk of injustice marginally favours the grant of an injunction. In so doing, the Court notes the provision by the Applicant of the usual undertaking as to damages. If it should transpire that the injunction ought not to have been granted, then inquiries will need to be made of the quantum of damage suffered by the Respondent. The Court grants the injunction subject to further order of the Court and in the expectation that the Applicant and Ms Downall will do everything reasonably practicable to ensure that the arbitration before the Commission proceeds as expeditiously as possible.

55    The Court is of the view that the terms of the injunctive relief sought are too wide. There is no basis for restraining the ability of the Respondent to terminate Ms Downall’s employment for reasons unrelated to the underlying dispute before the Commission. The injunction to be granted will not preclude the Respondent from terminating Ms Downall’s employment for reasons unrelated to her ability to perform night shifts.

Associate:     

Dated:        24 November 2022